NOTICE TO THE PUBLIC

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Public Hearing on Proposal of Commission to Study
the Attorney Grievance Process

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Notice is hereby given that on Monday, March 19, 2001, at 10:00 a.m. the Commission to Study the Attorney Grievance Process will conduct a public hearing at the Supreme Court for the purpose of receiving comments on the proposed revisions set forth below to the rules relating to the attorney grievance process in Connecticut. The Supreme Court is located at 231 Capitol Avenue, Hartford, Connecticut.

Robert I. Berdon, Judge Trial Referee
Chair, Commission to Study the
Attorney Grievance Process

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PROPOSED REVISIONS TO THE SUPERIOR COURT RULES
CONCERNING THE ATTORNEY GRIEVANCE PROCESS

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Sec. 2-16. --Attorney Appearing Pro Hac Vice

An attorney who is in good standing at the bar of another state, the District of Columbia, or the commonwealth of Puerto Rico, may, upon special and infrequent occasion and for good cause shown upon written application presented by a member of the bar of this state, be permitted in the discretion of the court to participate to such extent as the court may prescribe in the presentation of a cause or appeal in any court of this state; provided, however, that (1) such application shall be accompanied by the affidavit of the applicant (a) certifying whether such applicant has a grievance pending against him or her in any other jurisdiction, has ever been reprimanded, suspended, placed on inactive status, disbarred, or has ever resigned from the practice of law and, if so, setting forth the circumstances concerning such action, (b) designating the chief clerk of the superior court for the judicial district in which the attorney will be appearing as his or her agent upon whom process and service of notice may be served, and agreeing to register with the statewide grievance committee in accordance with the provisions of this chapter while appearing in the matter in this state and for two years after the completion of the matter in which the attorney appeared and (c) identifying the number of cases in which the attorney has appeared pro hac vice in the superior court of this state since the attorney has appeared pro hac vice in the state of Connecticut and (2) a member of the bar of this state must be present at all proceedings and must sign all pleadings, briefs and other papers filed with the court and assume full responsibility for them and for the conduct of the cause and of the attorney to whom such privilege is accorded. Where feasible, the application shall be made to the judge before whom such cause is likely to be tried. If not feasible, the application shall be made to the administrative judge in the judicial district where the matter is to be tried. Good cause for according such privilege shall be limited to facts or circumstances affecting the personal or financial welfare of the client and not the attorney. Such facts may include a showing that by reason of a longstanding attorney-client relationship predating the cause of action or subject matter of the litigation at bar, the attorney has acquired a specialized skill or knowledge with respect to the client's affairs important to the trial of the cause, or that the litigant is unable to secure the services of Connecticut counsel. Upon the granting of an application to appear pro hac vice, the clerk of the court in which the application is granted shall immediately notify the statewide grievance committee of such action.

(P.B. 1978-1997, Sec. 24.)

COMMENTARY: The amendments to this section make it clear that attorneys appearing pro hac vice are subject to the discipline process in this state.

Sec. 2-23. Roll of Attorneys

(a) The statewide bar counsel shall forward to the clerk for Hartford county for certification a roll of the attorneys of the state and the said clerk shall keep said roll. The clerk for any other county in which an attorney is admitted shall forthwith certify such action, with the date and the residence of the attorney, to the clerk for Hartford county, the statewide bar counsel and the administrative director of the bar examining committee.

(b) The clerk for any county in which an attorney is suspended, disbarred, resigned, placed in an inactive status, reinstated, or otherwise formally and publicly disciplined by the court shall forthwith certify such action with the date, the residence of the attorney and a certified copy of the court order to the statewide bar counsel and to the clerk for Hartford county, and shall notify them of the death of any attorney in his or her county of which such clerk knows.

(c) The clerk for Hartford county shall forthwith notify the clerks of the superior court and the clerk of the United States district court for the district of Connecticut, at New Haven, of all suspensions, disbarments, resignations, placements in inactive status, retirements, revocations of retirements, or reinstatements.

(P.B. 1978-1997, Sec. 26.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-24. Notice by Attorney of Admission in Other Jurisdictions

An attorney who is admitted to practice at the bar of another state, the District of Columbia, or the commonwealth of Puerto Rico, or of any United States court, shall send to the Connecticut statewide bar counsel written notice of all such jurisdictions in which he or she is admitted to practice within thirty days of admission to practice in such jurisdiction.

(P.B. 1978-1997, Sec. 26A.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-25. Notice by Attorney of Disciplinary Action in Other Jurisdictions

An attorney shall send to the statewide bar counsel written notice of all disciplinary actions imposed by the courts of another state, the District of Columbia, or the commonwealth of Puerto Rico, or of any United States court, within thirty days of the order directing the disciplinary action.

(P.B. 1978-1997, Sec. 26B.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-26. Notice by Attorney of Change in Address

An attorney shall send prompt written notice of a change in mailing and street address to the statewide grievance committee on a registration form approved by the statewide bar counsel and to the clerks of the courts where the attorney has entered an appearance.

(P.B. 1978-1997, Sec. 27.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-27. Clients' Funds

(a) Consistent with the requirement of Rule 1.15 of the Rules of Professional Conduct each lawyer or law firm shall maintain, separate from the lawyer's or the firm's personal funds, one or more accounts accurately reflecting the status of funds handled by the lawyer or firm as fiduciary or attorney, and shall not use such funds for any unauthorized purpose.

(b) Each lawyer or law firm maintaining one or more trust accounts as defined in Section 2-28(b) shall keep records of the maintenance and disposition of all funds of clients or of third persons held by the lawyer or firm in a fiduciary capacity from the time of receipt to the time of final distribution. Each lawyer or law firm shall retain the records required under this section for a period of seven years after final distribution of such funds or any portion thereof. Specifically, each lawyer or law firm shall maintain the following in connection with each such trust account:

(1) a receipt and disbursement journal identifying all deposits in and withdrawals from the account and showing the running account balance;

(2) a separate accounting page or column for each client or third person for whom funds are held showing (A) all receipts and disbursements and (B) a running account balance;

(3) at least quarterly a written reconciliation of trust account journals, client ledgers and bank statements;

(4) a list identifying all trust accounts as defined in Section 2-28(b); and

(5) all checkbooks, bank statements, and canceled or voided checks.

(c) Such books of account and statements of reconciliation, and any other records required to be maintained pursuant to subsection (b) of this section, shall be made available upon request of the statewide grievance committee or its counsel for review and audit upon a finding by the statewide grievance committee or a grievance panel that there exists probable cause that the lawyer or law firm is guilty of misconduct.

(d) Each lawyer shall register with the statewide grievance committee, on a form devised by the committee, the address of the lawyer's office or offices maintained for the practice of law and the name and address of the financial institution with which the lawyer maintains [his or her primary trust account] any account in which the funds of more than one client are kept [as defined in Section 2-28(c)] and the identification number of [that] any such account. Such registrations will be made on an annual basis and at such time as the lawyer changes his or her address or addresses or location or identification number of [his or her primary] any such trust account in which the funds of more than one client are kept. This subsection shall not apply to judges of the supreme, appellate or superior courts, to judge state referees or to family support magistrates.

(e) Violation of this section shall constitute misconduct.

(P.B. 1978-1997, Sec. 27A.)

COMMENTARY:

The amendments to this section expand the application of the section to any account in which the funds of more than one client are kept rather than designating only primary trust accounts. It is intended that expansion of the section will decrease abuse of the rule as currently adopted.

Sec. 2-28. Overdraft Notification

(a) The terms used in this section are defined as follows:

(1) "Financial institution" includes banks, savings and loan associations, credit unions, savings banks and any other business or person which accepts for deposit funds held in trust by attorneys.

(2) "Properly payable" refers to an instrument which, if presented in the normal course of business, is in a form requiring payment under law.

(3) "Insufficient funds" refers to the status of an account that does not contain sufficient funds available to pay a properly payable instrument.

(4) "Uncollected funds" refers to funds deposited in an account and available to be drawn upon but not yet deemed by the financial institution to have been collected.

(b) Attorneys shall deposit all funds held in any fiduciary capacity in accounts clearly identified as "trust," "client funds" or "escrow" accounts, referred to herein as "trust accounts," and shall take all steps necessary to inform the depository institution of the purpose and identity of such accounts. Funds held in trust include funds held in any fiduciary capacity in connection with a representation in Connecticut, whether as trustee, agent, guardian, executor or otherwise. Where an attorney fiduciary has the right to draw by a properly payable instrument on such trust account in which the funds of more than one client are kept, such account shall be maintained only in financial institutions approved by the statewide grievance committee. No such trust account in which the funds of more than one client are kept shall be maintained in any financial institution in Connecticut which does not file the agreement required by this section. Violation of this subsection shall constitute misconduct.

(c) Attorneys regularly maintaining funds in a fiduciary capacity shall [designate one account as a primary trust account and shall] register [such] any account in which the funds of more than one client are kept with the statewide grievance committee in accordance with Section 2-27 (d). [The account designated as the primary trust account shall be that account in which the attorney maintains the funds of the greatest number of his or her clients.]

(d) A financial institution shall be approved as a depository for attorney trust accounts only if it files with the statewide grievance committee an agreement, in a form provided by the committee, to report to the committee the fact that an instrument has been presented against an attorney trust account containing insufficient funds, irrespective of whether or not the instrument is honored. No report shall be required if funds in an amount sufficient to cover the deficiency in the trust account are deposited within one business day of the presentation of the instrument. No report shall be required in the case of an instrument presented and paid against uncollected funds.

(e) Any such agreement shall not be cancelled by a financial institution except upon thirty days written notice to the statewide grievance committee. The statewide grievance committee shall establish rules governing approval and termination of approved status for financial institutions, and shall publish annually a list of approved institutions. Any such agreement shall apply to all branches of the financial institution in Connecticut and shall not be cancelled except upon thirty days notice in writing to the statewide grievance committee.

(f) The financial institution shall report to the statewide grievance committee within seven business days from the date of such presentation, any instrument presented against insufficient funds unless funds in an amount sufficient to cover the deficiency in the trust account are deposited within one business day of the presentation of the instrument. The report shall be accompanied by a copy of the instrument.

(g) The statewide grievance committee may delegate to the statewide bar counsel the authority to investigate overdraft notifications and determine that no misconduct has occurred or that no further action is warranted. Any determination that misconduct may have occurred and a grievance complaint should be initiated, unless such complaint is premised upon the failure of an attorney to file an explanation of an overdraft, shall be made by the statewide grievance committee.

(h) Every attorney practicing or admitted to practice in Connecticut shall, as a condition thereof, be conclusively presumed to have authorized the reporting and production requirements of this section. Where an attorney qualifies as executor of a will or as trustee or successor fiduciary, the attorney-fiduciary shall have a reasonable time after qualification to bring preexisting trust accounts into compliance with the provisions of this section.

(P.B. 1978-1997, Sec. 27A.1.)

COMMENTARY:

The amendments to this section are consistent with the amendments to Section 2-27.

Sec. 2-29. Grievance Panels

(a) The judges of the superior court shall appoint one or more grievance panels in each judicial district, each consisting of two members of the bar who do not maintain an office for the practice of law in such judicial district and one nonattorney who resides in such judicial district, and shall designate as an alternate member a member of the bar who does not maintain an office for the practice of law in such judicial district. Terms shall commence on July 1. Appointments shall be for terms of three years. No person may serve as a member and/or as an alternate member for more than two consecutive three year terms, but may be reappointed after a lapse of one year. The appointment of any member or alternate member may be revoked or suspended by the judges or by the executive committee of the superior court. In connection with such revocation or suspension, the judges or the executive committee shall appoint a qualified individual to fill the vacancy for the balance of the term or for any other appropriate period. In the event that a vacancy arises on a panel before the end of a term by reasons other than revocation or suspension, the executive committee of the superior court shall appoint an attorney or nonattorney, depending on the position vacated, who meets the appropriate condition set forth above to fill the vacancy for the balance of the term.

(b) Consideration for appointment to these positions shall be given to those candidates recommended to the appointing authority by the administrative judges.

(c) In the event that more than one panel has been appointed to serve a particular judicial district, the executive committee of the superior court shall establish the jurisdiction of each such panel.

(d) An attorney who maintains an office for the practice of law in the same judicial district as a respondent may not participate as a member of a grievance panel concerning a complaint against that respondent.

(e) In addition to any other powers and duties set forth in this chapter, each panel shall:

(1) On its own motion or on complaint of any person, inquire into and investigate offenses whether or not occurring in the actual presence of the court involving the character, integrity, professional standing and conduct of members of the bar in this state.

(2) Compel any person by subpoena to appear before it to testify in relation to any matter deemed by the panel to be relevant to any inquiry or investigation it is conducting and to produce before it for examination any books or papers which, in its judgment, may be relevant to such inquiry or investigation.

(3) Utilize a court reporter or court recording monitor employed by the judicial branch to record any testimony taken before it.

(f) The grievance panel may, upon the vote of a majority of its members, require that a disciplinary counsel pursue the matter before the grievance panel on the issue of probable cause.

(P.B. 1978-1997, Sec.27B.)

COMMENTARY:

The amendment to this section allows the grievance panel, upon majority vote, to require that a disciplinary counsel pursue the matter before the panel.

Sec. 2-30. Grievance Counsel for Panels and Investigators

(a) The judges of the superior court shall appoint, as set forth below, attorneys to serve either on a part-time or full-time basis as grievance counsel for grievance panels, and shall appoint one or more investigators either on full-time or part-time basis. The investigators so appointed shall serve the statewide grievance committee, the reviewing committees and the grievance panels and shall be under the supervision of the statewide bar counsel. These appointments shall be for a term of one year commencing July 1. In the event that a vacancy arises in any of these positions before the end of a term, the executive committee of the superior court shall appoint a qualified individual to fill the vacancy for the balance of the term. Compensation for these positions shall be paid by the judicial branch. Such appointees may be placed on the judicial branch payroll or be paid on a contractual basis.

(b) Consideration for appointment to the position of grievance counsel for a grievance panel shall be given to those candidates recommended to the appointing authority by the resident judges in the judicial district or districts to which the appointment is to be made.

(c) The executive committee of the superior court shall determine the number of grievance counsel to serve one or more grievance panels.

(P.B. 1978-1997, Sec. 27D.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-31. Powers and Duties of Grievance Counsel

Grievance counsel shall have the following powers and duties:

(1) Upon referral of the complaint to the grievance panel, to confer with and, if possible, meet with the complainants and assist them in understanding the grievance process set forth in these rules and to answer questions complainants may have concerning that process.

[(1)](2) To investigate all complaints received by the grievance panel from the statewide bar counsel involving alleged misconduct of an attorney subject to the jurisdiction of the superior court.

[(2)](3) To assist the grievance panels in carrying out their duties under this chapter.

[(3)](4) When determined to be necessary by the statewide grievance committee, to assist reviewing committees of the statewide grievance committee in conducting hearings before said reviewing committees.

(5) If the grievance panel has dismissed the complaint, to assist the complainant in understanding the reasons for the dismissal.

(P.B. 1978-1997, Sec. 27E.)

COMMENTARY:

The above rules expand the role of grievance counsel in assisting complainants in understanding the grievance process and the reasons for a dismissal of their complaint. It is not intended that grievance counsel will provide legal advice to complainants or prosecute the complaint.

Sec. 2-32. Filing Complaints against Attorneys; Action; Time Limitation

(a) Any person, including disciplinary counsel, or a grievance panel on its own motion, may file a written complaint, executed under penalties of false statement, alleging attorney misconduct whether or not such alleged misconduct occurred in the actual presence of the court. Complaints against attorneys shall be filed with the statewide bar counsel. Within seven days of the receipt of a complaint the statewide bar counsel shall review the complaint and process it in accordance with subdivisions (1), (2) or (3) of this subsection as follows:

(1) forward the complaint to a grievance panel in the judicial district in which the respondent maintains his or her principal office or residence, provided that, if the respondent does not maintain such an address in this state, the statewide bar counsel shall forward the complaint to any grievance panel; and notify the complainant and the respondent, by certified mail with return receipt, of the panel to which the complaint was sent. The notification to the respondent shall be accompanied by a copy of the complaint. The respondent shall respond within thirty days of the date notification is mailed to the respondent unless for good cause shown such time is extended by the grievance panel. The response shall be sent to the grievance panel to which the complaint has been referred. The failure to file a timely response shall constitute misconduct unless the respondent establishes that the failure to respond timely was for good cause shown;

(2) refer the complaint to the chair of the statewide grievance committee or an attorney designee of the chair and to a nonattorney member of the committee, and the statewide bar counsel in conjunction with the chair or attorney designee and the nonattorney member, shall if deemed appropriate, dismiss the complaint on one or more of the following grounds:

(A) the complaint only alleges a fee dispute and not a clearly excessive or improper fee;

(B) the complaint does not allege facts which, if true, would constitute a violation of any provision of the applicable rules governing attorney conduct;

(C) the complaint does not contain sufficient specific allegations on which to conduct an investigation;

(D) the complaint is duplicative of a previously dismissed complaint;

(E) the complaint alleges that the last act or omission constituting the alleged misconduct occurred more than six years prior to the date on which the complaint was filed;

(i) Notwithstanding the period of limitation set forth in this subparagraph, an allegation of misconduct that would constitute a violation of Rule 1.15, 8.1 or 8.4(2) through (6) of the Rules of Professional Conduct may still be considered as long as a written complaint is filed within one year of the discovery of such alleged misconduct.

(ii) Each period of limitation in this subparagraph is tolled during any period in which: (1) the alleged misconduct remains undiscovered due to active concealment; (2) the alleged misconduct would constitute a violation of Rule 1.8(c) and the conditions precedent of the instrument have not been satisfied; (3) the alleged misconduct is part of a continuing course of misconduct; or (4) the aggrieved party is under the age of majority, insane, or otherwise unable to file a complaint due to mental or physical incapacitation.

(F) the complaint alleges misconduct occurring in a superior court, appellate court or supreme court action and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct or finding that either no misconduct has occurred or that the allegations should not be referred to the statewide grievance committee;

(G) the complaint alleges personal behavior outside the practice of law which does not constitute a violation of the Rules of Professional Conduct;

(H) the complaint alleges the nonpayment of incurred indebtedness;

(I) the complaint names only a law firm or other entity and not any individual attorney, unless dismissal would result in gross injustice. If the complaint names a law firm or other entity as well as an individual attorney or attorneys, the complaint shall be dismissed only as against the law firm or entity[.];

(J) the complaint alleges misconduct occurring in another jurisdiction in which the attorney is also admitted and in which the attorney maintains an office to practice law, and it would be more practicable for the matter to be determined in the other jurisdiction. If a complaint is dismissed pursuant to this subdivision, it shall be without prejudice and the matter shall be referred by the statewide bar counsel to the jurisdiction in which the conduct is alleged to have occurred.

(3) If a complaint alleges only a fee dispute within the meaning of subsection (a)(2)(A) of this section, the statewide bar counsel in conjunction with the chairperson or attorney designee and the non-attorney member may stay further proceedings on the complaint on such terms and conditions deemed appropriate, including referring the parties to fee arbitration. The record and result of any such fee arbitration [may be considered in determining the disposition] shall be filed with the statewide bar counsel and shall be dispositive of the complaint. A party who refuses to utilize the no cost fee arbitration service provided by the Connecticut Bar Association shall pay the cost of the arbitration.

(b) The statewide bar counsel, chair or attorney designee and nonattorney member shall have fourteen days from the date the complaint was filed to determine whether to dismiss the complaint. If after review by the statewide bar counsel, chair or attorney designee and non-attorney member it is determined that the complaint should be forwarded to a grievance panel for investigation in accordance with subsections (f) through (j) of this section, the complaint shall be so forwarded in accordance with subsection (a) (1) of this section within seven days of the determination to forward the complaint.

(c) If the complaint is dismissed by the statewide bar counsel in conjunction with the chair or attorney designee and nonattorney member, the complainant and respondent shall be notified of the dismissal in writing. The respondent shall be provided with a copy of the complaint with the notice of dismissal. The notice of dismissal shall set forth the reason or reasons for the dismissal. The complainant shall have fourteen days from the date notice of the dismissal is mailed to the complainant to file an appeal of the dismissal. The appeal shall be in writing setting forth the basis of the appeal and shall be filed with the statewide bar counsel who shall forward it to a reviewing committee for decision on the appeal. The reviewing committee shall review the appeal and render a decision thereon within sixty days of the filing of the appeal. The reviewing committee shall either affirm the dismissal of the complaint or order the complaint forwarded to a grievance panel for investigation in accordance with subsections (f) through (j) of this section. The decision of the reviewing committee shall be in writing and mailed to the complainant. The decision of the reviewing committee shall be final.

(d) The statewide bar counsel shall keep a record of all complaints filed. The complainant and the respondent shall notify the statewide bar counsel of any change of address or telephone number during the pendency of the proceedings on the complaint.

(e) If for good cause a grievance panel declines, or is unable pursuant to Section 2-29 (d), to investigate a complaint, it shall forthwith return the complaint to the statewide bar counsel to be referred by him or her immediately to another panel. Notification of such referral shall be given by the statewide bar counsel to the complainant and the respondent by certified mail with return receipt.

(f) The grievance panel, with the assistance of the grievance counsel assigned to it, shall investigate each complaint to determine whether probable cause exists that the attorney is guilty of misconduct. The grievance panel may, upon the vote of a majority of its members, require that a disciplinary counsel pursue the matter before the grievance panel on the issue of probable cause.

(g) Investigations and proceedings of the grievance panel shall be confidential unless the attorney under investigation requests that such investigation and proceedings be public.

(h) On the request of the respondent and for good cause shown, or on its own motion, the grievance panel may conduct a hearing on the complaint. The complainant and respondent shall be entitled to be present at any proceedings on the complaint at which testimony is given and to have counsel present, provided, however, that they shall not be entitled to examine or cross-examine witnesses unless requested by the grievance panel.

(i) The panel shall, within one hundred and ten days from the date the complaint was referred to it, unless such time is extended pursuant to subsection (j), do one of the following: (1) If the panel determines that probable cause exists that the respondent is guilty of misconduct, it shall file the following with the statewide grievance committee: (A) its written determination [concerning whether] that probable cause exists that the respondent is guilty of misconduct, (B) a copy of the complaint and response, (C) a transcript of any testimony heard by the panel, (D) a copy of any investigatory file and copies of any documents, transcripts or other written materials which were available to the panel. These materials shall constitute the panel’s record in the case. (2) If the panel determines that no probable cause exists that the respondent is guilty of misconduct, it shall dismiss the complaint unless there is an allegation in the complaint that the respondent committed a crime. Such dismissal shall be final and there shall be no review of the matter by the statewide grievance committee. In cases in which there is an allegation in the complaint that the respondent committed a crime, the panel shall file with the statewide grievance committee its written determination that no probable cause exists and the materials set forth in subsection (i)(1)(B), (C) and (D). These materials shall constitute the panel’s record in the case. [The panel may file a motion for extension of time not to exceed thirty days with the statewide grievance committee which may grant the motion only upon a finding of good cause. If the panel does not complete its action on a complaint within the time provided in this section, the statewide committee shall inquire into the delay and shall order that the panel take action on the complaint forthwith, or order that the complaint be forwarded to and heard by another panel or a reviewing committee designated by the statewide grievance committee. The panel shall not make a probable cause determination based, in full or in part, on a claim of misconduct not alleged in the complaint without first notifying the respondent that it is considering such action and affording the respondent the opportunity to be heard.]

(j) The panel may file a motion for extension of time not to exceed thirty days with the statewide grievance committee which may grant the motion only upon a finding of good cause. If the panel does not complete its action on a complaint within the time provided in this section, the statewide committee shall inquire into the delay and shall order that the panel take action on the complaint forthwith, or order that the complaint be forwarded to and heard by another panel or a reviewing committee designated by the statewide grievance committee. The panel shall not make a probable cause determination based, in full or in part, on a claim of misconduct not alleged in the complaint without first notifying the respondent that it is considering such action and affording the respondent the opportunity to be heard.

[(j)](k) The panel shall notify the complainant and the respondent of its determination. The determination shall be a matter of public record.

(P.B. 1978-1997, Sec. 27F.) (Amended June 29, 1998, to take effect Jan. 1, 1999; amended June 28, 1999, to take effect Jan. 1, 2000.)

COMMENTARY:

The amendments to this section authorize the grievance panels to dismiss a complaint if a finding of no probable cause is made by the panel. That dismissal will be final unless criminal conduct is alleged in the complaint. The last three sentences of subsection (i) have been moved, verbatim, to new subsection (j).

Sec. 2-33. Statewide Grievance Committee

(a) The judges of the superior court shall appoint twenty-one persons to a committee to be known as the "statewide grievance committee." At least seven shall not be attorneys and the remainder shall be members of the bar of this state. The judges shall designate one member as chair and another as vice-chair to act in the absence or disability of the chair.

(b) All members shall serve for a term of three years commencing on July 1. Except as otherwise provided herein, no person shall serve as a member for more than two consecutive three year terms, excluding any appointments for less than a full term; a member may be reappointed after a lapse of one year. If the term of a member who is on a reviewing committee expires while a complaint is pending before that committee, the judges or the executive committee may extend the term of such member to such time as the reviewing committee has completed its action on that complaint. In the event of such an extension the total number of statewide grievance committee members may exceed twenty-one. The appointment of any member may be revoked or suspended by the judges or by the executive committee of the superior court. In connection with such revocation or suspension, the judges or the executive committee shall appoint a qualified individual to fill the vacancy for the remainder of the term or for any other appropriate period. In the event that a vacancy arises in this position before the end of a term by reasons other than revocation or suspension, the executive committee of the superior court shall fill the vacancy for the balance of the term or for any other appropriate period. Unless otherwise provided in this chapter, the committee must have at least a quorum present to act, and a quorum shall be eleven. The committee shall act by a vote of a majority of those present and voting, provided that a minimum of six votes for a particular action is necessary for the committee to act. Members present but not voting due to disqualification, abstention, silence or a refusal to vote, shall be counted for purposes of establishing a quorum, but not counted in calculating a majority of those present and voting.

(c) In addition to any other powers and duties set forth in this chapter, the statewide grievance committee shall:

(1) Institute complaints involving violations of General Statutes 51-88.

(2) Adopt rules to carry out its duties under this chapter which are not inconsistent with these rules.

(3) Adopt rules for grievance panels to carry out their duties under this chapter which are not inconsistent with these rules.

(4) In its discretion, disclose that it or the statewide bar counsel has referred a complaint to a panel for investigation when such disclosure is deemed by the committee to be in the public interest.

(P.B. 1978-1997, Sec. 27G.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-34. Statewide Bar Counsel

(a) The judges of the superior court shall appoint an attorney to act as statewide bar counsel, and such additional attorneys to act as assistant bar counsel as are necessary, for a term of one year commencing July 1. In the event that a vacancy arises in any such position before the end of a term, the executive committee of the superior court shall appoint an attorney to fill the vacancy for the balance of the term. Compensation for these positions shall be paid by the judicial branch. Such individuals shall be in the legal services division of the office of the chief court administrator and shall perform such other duties as may be assigned to them in that capacity.

(b) In addition to any other powers and duties set forth in this chapter, the statewide bar counsel or an assistant bar counsel shall:

(1) [Investigate and prosecute complaints involving the violation by any person of General Statutes 51-88.

(2)] Report to the national disciplinary data bank such requested information as is officially reported to the statewide bar counsel concerning attorneys who have resigned pursuant to Section 2-52, or whose unethical conduct has resulted in disciplinary action by the court or by the statewide grievance committee, or who have been placed on inactive status pursuant to Sections 2-56 through 2-62.

[(3)](2) Receive and maintain information forwarded to the statewide bar counsel by the national disciplinary data bank.

[(4)](3) Receive and maintain records forwarded to the statewide bar counsel by the clerks of court pursuant to Sections 2-23 and 2-52 and by complainants pursuant to Section 2-32.

[(5)](4) Certify to the status of individuals who are or were members of the bar of this state at the request of bar admission authorities of other jurisdictions or at the request of a member of the bar of this state with respect to such member's status. In certifying to the status of an individual, no information shall be provided to the requesting entity, other than public information, without a waiver from that individual.

[(6)](5) Assist the statewide grievance committee and the reviewing committees in carrying out their duties under this chapter.

[(7) At the request of the statewide grievance committee or a reviewing committee, prepare and file complaints initiating presentment proceedings in the superior court, whether or not the alleged misconduct occurred in the actual presence of the court, and prosecute same.]

(P.B. 1978-1997, Sec. 27H.)

(New) Section 2-34A. Disciplinary Counsel

(a) There shall be a chief disciplinary counsel and such disciplinary counsel and staff as are necessary. The chief disciplinary counsel and the disciplinary counsel shall be appointed by the judges of the superior court for a term of one year commencing July 1. In the event that a vacancy arises in any of these positions before the end of a term, the executive committee of the superior court may appoint a qualified individual to fill the vacancy for the balance of the term. The chief disciplinary counsel and disciplinary counsel shall be assigned to the office of the chief court administrator for administrative purposes and shall not engage in the private practice of law. The term "disciplinary counsel" as used in the rules for the superior court shall mean the chief disciplinary counsel or any disciplinary counsel.

(b) In addition to any other powers and duties set forth in this chapter, disciplinary counsel shall:

(1) Investigate each complaint which has been forwarded by a grievance panel to the statewide grievance committee for review pursuant to Section 2-32(i) and pursue such matter before the statewide grievance committee or reviewing committee.

(2) Pursuant to Section 2-82, discuss and may negotiate a disposition of the complaint with the respondent or, if represented by an attorney, the respondent’s attorney, subject to the approval of the statewide grievance committee or a reviewing committee or the court.

(3) Remove irrelevant information from the complaint file and thereafter permit discovery of information in the file.

(4) Have the power to subpoena witnesses for any hearing convened to enforce grievance rules.

(5) In his or her discretion, recommend dispositions to the statewide grievance committee or the reviewing committee after the hearing on a complaint is concluded.

(6) At the request of the statewide grievance committee or a reviewing committee, prepare and file complaints initiating presentment proceedings in the superior court, whether or not the alleged misconduct occurred in the actual presence of the court, and prosecute same.

(7) At the request of a grievance panel made pursuant to Section 2-29, pursue the matter before the grievance panel on the issue of probable cause.

(8) Investigate and prosecute complaints involving the violation by any person of General Statutes 51-88.

COMMENTARY:

It is recommended that the position of disciplinary counsel be created within the office of the chief court administrator. The disciplinary counsel will investigate and pursue all cases before the statewide grievance committee or the reviewing committee. The disciplinary counsel will also have the other powers indicated. Unless requested by a grievance panel under Section 2-29 to pursue a matter before the grievance panel, the disciplinary counsel would become involved only after a determination that there is probable cause that the respondent is guilty of misconduct, or a determination that a crime is alleged in the complaint. The disciplinary counsel will initiate presentment proceedings and assume all prosecutorial functions of the office of statewide bar counsel.

Sec. 2-35. Action by Statewide Grievance Committee or Reviewing Committee

(a) Upon receipt of the record from a grievance panel, the statewide grievance committee may assign the case to a reviewing committee which shall consist of at least three members of the statewide grievance committee, at least one third of whom are not attorneys. The statewide grievance committee may, in its discretion, reassign the case to a different reviewing committee. The committee shall regularly rotate membership on reviewing committees and assignments of complaints from the various grievance panels. An attorney who maintains an office for the practice of law in the same judicial district as the respondent may not sit on the reviewing committee for that case.

(b) The statewide grievance committee and the reviewing committee shall have the power to issue a subpoena to compel any person to appear before it to testify in relation to any matter deemed by the statewide grievance committee or the reviewing committee to be relevant to the complaint and to produce before it for examination any books or papers which, in its judgment, may be relevant to such complaint. Any such testimony shall be on the record.

(c) If the grievance panel determine[s]d that probable cause exists that the respondent is guilty of misconduct, the statewide grievance committee or the reviewing committee shall hold a hearing on the complaint. If the grievance panel determine[s]d that probable cause does not exist, but filed the matter with the statewide grievance committee because the complaint alleges that a crime has been committed, the statewide grievance committee or the reviewing committee shall review the determination of no probable cause, take evidence if it deems it appropriate and, if it determines that probable cause does exist, shall take the following action: (1) if the statewide grievance committee reviewed the grievance panel's determination, it shall hold a hearing concerning the complaint or assign the matter to a reviewing committee to hold the hearing; or (2) if a reviewing committee reviewed the grievance panel's determination, it shall hold a hearing concerning the complaint or refer the matter to the statewide grievance committee which shall assign it to another reviewing committee to hold the hearing. At least two of the same members of a reviewing committee shall be physically present at all hearings held by such reviewing committee. Unless waived by the disciplinary counsel and the respondent, the remaining member of the reviewing committee shall obtain and review the transcript of each such hearing and shall participate in the committee’s determination. If either the statewide grievance committee or the reviewing committee determines that probable cause does exist, it shall issue a written notice which shall include but not be limited to the following: (i) a description of the factual allegation or allegations that were considered in rendering the determination; and (ii) for each such factual allegation, an identification of the specific provision or provisions of the applicable rules governing attorney conduct considered in rendering the determination. All hearings following a determination of probable cause shall be public and on the record. The statewide grievance committee or reviewing committee shall not make a probable cause determination based, in full or in part, on a claim of misconduct not alleged in the complaint without first notifying the respondent that it is considering such action and affording the respondent the opportunity to be heard.

(d) The complainant and respondent shall be entitled to be present at all hearings and other proceedings on the complaint at which testimony is given and to have counsel present. At all hearings the respondent shall have the right to be heard in the respondent's own defense and by witnesses and counsel. The disciplinary counsel shall pursue the matter before the statewide grievance committee or reviewing committee. [The complainant] The disciplinary counsel and the respondent shall be entitled to examine or cross-examine witnesses. At the conclusion of the evidentiary phase of a hearing, the complainant, the disciplinary counsel and the respondent shall have the opportunity to make a statement, either individually or through counsel. The statewide grievance committee or reviewing committee may request oral argument.

(e) Within ninety days of the date the grievance panel filed its determination [of probable cause or no probable cause] with the statewide grievance committee pursuant to Section 2-32(i), the reviewing committee shall render a final written decision dismissing the complaint, imposing sanctions and conditions as authorized by Section 2-37 or directing the [statewide bar] disciplinary counsel to file a presentment against the respondent in the superior court and file it with the statewide grievance committee. Where there is a final decision dismissing the complaint, the reviewing committee may give notice in a written summary order to be followed by a full written decision. The reviewing committee's record in the case shall consist of a copy of all evidence it received or considered, including a transcript of any testimony heard by it, and its decision. The record shall also be sent to the statewide grievance committee. The reviewing committee shall forward a copy of the final decision to the complainant, the disciplinary counsel, the respondent, and the grievance panel to which the complaint was forwarded [and which rendered a probable cause determination]. The decision shall be a matter of public record if it results in the imposition of discipline. The reviewing committee may file a motion for extension of time not to exceed thirty days with the statewide grievance committee which shall grant the motion only upon a showing of good cause. If the reviewing committee does not complete its action on a complaint within the time provided in this section, the statewide committee shall, on motion of the complainant or the respondent or on its own motion, inquire into the delay and determine the appropriate course of action. Enforcement of the final decision, including the publication of the notice of a reprimand pursuant to Section 2-54, shall be stayed for thirty days from the date of the issuance to the parties of the final decision. In the event the respondent timely submits to the statewide grievance committee a request for review of the final decision of the reviewing committee, such stay shall remain in full force and effect pursuant to Section 2-38(b).

(f) If the reviewing committee finds probable cause to believe the respondent has violated the criminal law of this state, it shall report its findings to the chief state's attorney.

(g) Within thirty days of the issuance to the parties of the final decision by the reviewing committee, the respondent may submit to the statewide grievance committee a request for review of the decision. Any request for review submitted under this section must specify the basis for the request, including, but not limited to a claim or claims that the reviewing committee's findings, inferences, conclusions or decision is or are (1) in violation of constitutional, rules of practice or statutory provisions; (2) in excess of the authority of the reviewing committee; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion and the specific basis for such claim or claims.

(h) If, after its review of a complaint pursuant to this section that was forwarded to the statewide grievance committee pursuant to Sec. 2-32(i)(2), a reviewing committee agrees with a grievance panel's determination that probable cause does not exist that the attorney is guilty of misconduct and there has been no finding of probable cause by the statewide grievance committee or a reviewing committee, the reviewing committee shall have the authority to dismiss the complaint within the time period set forth in subsection (e) of this section without review by the statewide grievance committee. The reviewing committee shall file its decision dismissing the complaint with the statewide grievance committee along with the record of the matter and shall send a copy of the decision to the complainant, the respondent, and the grievance panel to which the complaint was assigned [and which rendered a probable cause determination. Such decision shall be a matter of public record].

(i) If the statewide grievance committee does not assign a complaint to a reviewing committee, it shall have one hundred and twenty days from the date the panel's determination [concerning probable cause] was filed with it to render a decision dismissing the complaint, imposing sanctions and conditions as authorized by Section 2-37 or directing the [statewide bar] disciplinary counsel to file a presentment against the respondent. The decision shall be a matter of public record. The failure of a reviewing committee to complete its action on a complaint within the period of time provided in this section shall not be cause for dismissal of the complaint. If the statewide grievance committee finds probable cause to believe that the respondent has violated the criminal law of this state, it shall report its findings to the chief state's attorney.

(P.B. 1978-1997, Sec. 27J.) (Amended June 28, 1999, to take effect Jan. 1, 2000.)

COMMENTARY:

The amendments to this section make this section consistent with the Section 2-32 which, as amended, gives grievance panels the authority to dismiss complaints. The amendments also recognize the responsibilities of disciplinary counsel to pursue all matters before the statewide grievance committee, and require that at least two of the three reviewing committee members be physically present at all hearings held by such committee.

Sec. 2-36. Action by Statewide Grievance Committee on Request for Review

Within sixty days of the expiration of the thirty day period for the filing of a request for review under Section 2-35 (g), the statewide grievance committee shall issue a written decision affirming the decision of the reviewing committee, dismissing the complaint, imposing sanctions and conditions as authorized by Section 2-37, directing the [statewide bar] disciplinary counsel to file a presentment against the respondent in the superior court or referring the complaint to the same or a different reviewing committee for further investigation and a decision. Before issuing its decision, the statewide grievance committee may, in its discretion, request oral argument. The statewide grievance committee shall forward a copy of its decision to the complainant, the disciplinary counsel, the respondent, the reviewing committee and the grievance panel which investigated the complaint. The decision shall be a matter of public record. A decision of the statewide grievance committee shall be issued only if the respondent has timely filed a request for review under Section 2-35 (g).

(P.B. 1978-1997, Sec. 27M.)

COMMENTARY:

This amendments to this section recognize the responsibilities of disciplinary counsel.

Sec. 2-37. Sanctions and Conditions Which May Be Imposed by Committees

(a) A reviewing committee or the statewide grievance committee may impose one or more of the following sanctions and conditions in accordance with the provisions of Sections 2-35 and 2-36:

(1) reprimand;

(2) restitution;

(3) assessment of costs;

(4) an order that the respondent return a client's file to the client;

(5) a requirement that the respondent attend continuing legal education courses, at his or her own expense, regarding one or more areas of substantive law or law office management;

(6) an order to submit to fee arbitration;

(7) with the respondent's consent, an order to submit to periodic audits and supervision of the attorney's trust accounts to insure compliance with the provisions of Section 2-27 and the related Rules of Professional Conduct;

(8) with the respondent's consent, a requirement that the respondent undertake treatment, at his or her own expense, for medical, psychological or psychiatric conditions or for problems of alcohol or substance abuse.

(b) In connection with subsection (a)(6), a party who refuses to utilize the no cost fee arbitration service provided by the Connecticut Bar Association shall pay the cost of the arbitration.

(c) Failure of the respondent to comply with any sanction or condition imposed by the statewide grievance committee or a reviewing committee may be grounds for presentment before the superior court.

(P.B. 1978-1997, Sec. 27M.1.) (Amended June 28, 1999, to take effect Jan. 1, 2000.)

COMMENTARY:

No changes are proposed to this section.

Sec. 2-38. Appeal from Decision of Statewide Grievance Committee or Reviewing Committee to Reprimand

(a) A respondent may appeal to the superior court a decision by the statewide grievance committee or a reviewing committee reprimanding the respondent, except that a respondent may not appeal a decision by a reviewing committee reprimanding the respondent if the respondent has not timely requested a review of the decision by the statewide grievance committee under Section 2-35 (g). The appeal shall be filed with the clerk of the superior court for the judicial district of Hartford at Hartford within thirty days from the issuance, pursuant to Section 2-36, of the decision of the statewide grievance committee. A copy of the appeal shall be served on the statewide bar counsel as agent for the statewide grievance committee in the same manner as in civil actions.

(b) Enforcement of a final decision by the statewide grievance committee reprimanding the respondent pursuant to Section 2-35(i), including the publication of the notice of reprimand in accordance with Section 2-54, shall be stayed for thirty days from the issuance to the parties of such decision. Enforcement of a decision by a reviewing committee reprimanding the respondent, including the publication of the notice of reprimand in accordance with Section 2-54, shall be stayed for thirty days from the issuance to the parties of the final decision of the reviewing committee pursuant to Section 2-35(g). If within that period the respondent files with the statewide grievance committee a request for review of the reviewing committee's decision, the stay shall remain in effect for thirty days from the issuance by the statewide grievance committee of its final decision pursuant to Section 2-36. If the respondent timely commences an appeal pursuant to subsection (a) of this section, such stay shall remain in full force and effect until the conclusion of all proceedings, including all appeals, relating to the decision reprimanding the respondent. If at the conclusion of all proceedings, the decision reprimanding the respondent is rescinded, the complaint shall be deemed dismissed as of the date of the reprimand decision for all purposes, including the application of Section 2-50(b). An application to terminate the stay may be made to the court and shall be granted if the court is of the opinion that the appeal is taken only for delay or that the due administration of justice requires that the stay be terminated.

(c) Within thirty days after the service of the appeal, or within such further time as may be allowed by the court, the statewide bar counsel shall transmit to the reviewing court a certified copy of the entire record of the proceeding appealed from, which shall include the grievance panel's record in the case, as defined in Section 2-32 (i), and a copy of the statewide grievance committee's record or the reviewing committee's record in the case, which shall include a transcript of any testimony heard by it or by a reviewing committee which is required by rule to be on the record, any decision by the reviewing committee in the case, any requests filed pursuant to Section 2-35 (g) of this section, and a copy of the statewide grievance committee's decision on the request for review. By stipulation of all parties to such appeal proceedings, the record may be shortened. The court may require or permit subsequent corrections or additions to the record.

(d) The appeal shall be conducted by the court without a jury and shall be confined to the record. If alleged irregularities in procedure before the statewide grievance committee or reviewing committee are not shown in the record, proof limited thereto may be taken in the court. The court, upon request, shall hear oral argument.

(e) The respondent shall file a brief within thirty days after the filing of the record by the statewide bar counsel. The [statewide grievance committee] disciplinary counsel shall file [its] his or her brief within thirty days of the filing of the respondent's brief. Unless permission is given by the court for good cause shown, briefs shall not exceed thirty-five pages.

(f) Upon appeal, the court shall not substitute its judgment for that of the statewide grievance committee or reviewing committee as to the weight of the evidence on questions of fact. The court shall affirm the decision of the committee unless the court finds that substantial rights of the respondent have been prejudiced because the committee's findings, inferences, conclusions, or decisions are: (1) In violation of constitutional, rules of practice or statutory provisions; (2) in excess of the authority of the committee; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, rescind the action of the statewide grievance committee or take such other action as may be necessary. For purposes of further appeal, the action taken by the superior court hereunder is a final judgment.

(g) In all appeals taken under this section, costs may be taxed in favor of the statewide grievance committee in the same manner, and to the same extent, that costs are allowed in judgments rendered by the superior court. No costs shall be taxed against the statewide grievance committee, except that the court may, in its discretion, award to the respondent reasonable fees and expenses if the court determines that the action of the committee was undertaken without any substantial justification. "Reasonable fees and expenses" means any expenses not in excess of seven thousand five hundred dollars which the court finds were reasonably incurred in opposing the committee's action, including court costs, expenses incurred in administrative proceedings, attorney's fees, witness fees of all necessary witnesses, and such other expenses as were reasonably incurred.

(P.B. 1978-1997, Sec. 27N.) (Amended June 29, 1998, to take effect Sept. 1, 1999; amended June 28, 1999, to take effect Jan. 1, 2000.)

COMMENTARY:

The amendments to this section recognize the responsibilities of the disciplinary counsel in regard to this section.

Sec. 2-39. Reciprocal Discipline

(a) Upon being informed that a lawyer admitted to the Connecticut bar has resigned, been disbarred, suspended or otherwise disciplined, or placed on inactive disability status in another jurisdiction, and that said discipline or inactive disability status has not been stayed, the [statewide bar] disciplinary counsel shall obtain a certified copy of the order and file it with the superior court for the judicial district wherein the lawyer maintains an office for the practice of law in this state, except that, if the lawyer has no such office, the [lawyer] disciplinary counsel shall file [it] the certified copy of the order from the other jurisdiction with the superior court for the judicial district of Hartford at Hartford. No entry fee shall be required for proceedings hereunder.

(b) Upon receipt of a certified copy of the order, the court shall forthwith cause to be served upon the lawyer a copy of the order from the other jurisdiction and an order directing the lawyer to file within thirty days of service, with proof of service upon the [statewide bar] disciplinary counsel, an answer admitting or denying the action in the other jurisdiction and setting forth, if any, reasons why commensurate action in this state would be unwarranted. Such certified copy will constitute prima facie evidence that the order of the other jurisdiction entered and that the findings contained therein are true.

(c) Upon the expiration of the thirty day period the court shall assign the matter for a hearing. After hearing, the court shall take commensurate action unless it is found that any defense set forth in the answer has been established by clear and convincing evidence.

(d) Notwithstanding the above, a reciprocal discipline action need not be filed if the conduct giving rise to discipline in another jurisdiction has already been the subject of a formal review by the court or statewide grievance committee.

(P.B. 1978-1997, Sec. 28A.) (Amended June 29, 1998, to take effect Sept. 1, 1998.)

COMMENTARY:

A judge hearing the matter may want to consider the following criteria:

(1) The procedure was lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or

(2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or

(3) The imposition of the same discipline by the court would result in grave injustice; or

(4) The misconduct established warrants substantially different discipline in this state; or

(5) The reason for the original transfer to disability inactive status no longer exists.

See ABA, Model Rules for Lawyer Disciplinary Enforcement, Rule 22 D.

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